Freed man wants to know why

 

Arvin McGee Jr., whose 1988 prison mug shot is shown at left, says he sees no similarity between himself and Edward Arnell Alberty, whose mug shot from the same year is shown at right. A rape victim identified McGee as the man who attacked her, and he served nearly 14 years in prison for the crime, which DNA tests now prove he did not commit. DNA from evidence collected after the crime matches Alberty's DNA.


Arvin McGee Jr. had a hard time sitting through the preliminary hearing. But this time, he was there seeking an explanation.

McGee spent nearly 14 years in prison for a rape he didn't commit. Now the man who is accused of the crime, Edward Arnell Alberty, is awaiting trial.

"I don't know why I go. I guess I'm looking for answers," McGee said. "I'm looking for why I was picked out, why I had to go to jail and why I had to go through all this. But no one's giving any answers.

"No matter what happens, justice won't be served," McGee said. Fourteen years of prison time can't be made up.

McGee was convicted in 1989 after the third of his three trials for the 1987 kidnapping and rape of a Tulsa laundry employee.

He was convicted mainly on the victim's identification of him as the rapist. She identified him at each trial.

The first two times the case had gone to court, it ended in mistrials.

McGee's story reflects the experiences of 110 other people nationwide who have been released based on post-conviction DNA testing of evidence. In most of those cases, an eyewitness or a victim placed the defendant at the crime.

McGee says he is frustrated and angry because he sees no similarity between himself and Alberty. He said some people have a difficult time differentiating between the skin tones and features of black people.

"He looks nothing like me," McGee said. "Compared to him, I don't come close. He is a much darker color, and he's slim and skinny. I don't see how anyone can make that mistake.

"But the sketch they drew of the (rapist) at the time did not look like him. It looked more toward me. That was a big problem. I don't know how or why that would happen."

The victim's description of her attacker varied slightly throughout the course of two years after the crime. Her description stayed with a height of about 6 feet with a "slender body build" of about 150 pounds.

The attacker's hair was described as having red streaks, and an artist's sketch showed collar-length hair. The victim described the hair length as short on two occasions and "short to shoulder-length" in testimony at trial.

The only physical evidence used against McGee was a blood type on semen, which matched 19 percent of the population. Testing of the DNA has linked Alberty to the crime and cleared McGee.

McGee met with the victim about two weeks ago but would not give details of the meeting. He said she requested the meeting.

"She's hurt; I'm hurt," McGee said. "She's got this nightmare, and I lived through a nightmare."

The Innocence Project at the Cardozo School of Law in New York, founded by noted attorneys Barry Scheck and Peter Neufeld, examined the first 70 DNA exonerations to determine the causes of the wrongful convictions.

Eyewitness identification is listed as the most common factor, with 61 of the cases having an eyewitness identify the defendant as having committed the crime.

The next most common factors were serology inclusion (40 cases) and police misconduct (38 cases).

The Center on Wrongful Conviction, located at the Northwestern University School of Law, had the same results in May 2001 after analyzing the cases of 86 death-row inmates who were later exonerated.

Eyewitness testimony was involved in 53.5 percent of those cases and was the only evidence in 38 percent.

Of the cases with eyewitness es, only one eyewitness testified in 70 percent of the cases, and 17 percent had eyewitnesses who were accomplices with incentives to testify.

Eyewitness testimony has been and remains the cornerstone of the legal system. It is the most common type of evidence used daily in court.

"It is the most persuasive evidence to have someone say, 'I saw this person commit this crime,' " said Martin Belsky, dean of the University of Tulsa College of Law. "You can cross-examine up the wazoo, . . . but juries will accept eyewitness identification."

Eyewitness testimony is considered direct -- or factual -- evidence, and physical evidence is placed as circumstantial evidence.

"People like direct evidence more, even if direct evidence might not necessarily be the best evidence," Belsky said.

Television shows such as "CSI" and "The New Detectives" have created a public understanding of forensic -- or physical -- evidence. But most laboratories are not equipped with the same technology that is used on those programs, and they often have backlogs of cases.

"Physical evidence is not that common," Belsky said. "No one has those types of resources.

"Eyewitness testimony is the key area of evidence, and confession is the most accepted. Identification by a neutral third party with nothing to gain is the best," he continued.

"I'm not defending this as reliable evidence," Belsky said. "Eyewitness testimony is not always accurate, because people have a tendency to frame an identification to what they want to see."

The DNA Project administered by the Oklahoma Indigent Defense System aided in McGee's release. By law, the program accepts only cases where forensic evidence is available for DNA testing.

Jamie Pybas, supervisor of the program, said that because of a lack of physical evidence, the program doesn't take on about 50 percent of the cases that apply. She said a majority of the total cases include an eyewitness identification.

Pybas said at least one national innocence program has exonerated inmates by undermining the eyewitness and informant testimony that was given at trial.

"I would love for there to be an expanded innocence project in the state to take cases where there is no forensic evidence," Pybas said. "A law school would be a good candidate for that type of work.

After sitting through the preliminary hearing at which Alberty was bound over for trial, McGee returned home to enjoy his first Christmas celebration since his release.

His family of 10 siblings, mother and stepfather have been helping him adjust, and he has completed his first semester as a full-time student at Tulsa Community College. He is majoring in liberal arts with a plan to become a counselor.

"I did pretty well," he said. "I shocked myself. I'd been out of school for more than 20 years."

Once in awhile, McGee said, people will recognize him.

"People want to know how I'm holding up and ask how I can be so calm and collected. But it still upsets me," McGee said. "I'm very frustrated and angry, but I take it one day at a time."

Ginnie Graham, World staff writer, can be reached at 581-8376 or via e-mail at ginnie.graham@tulsaworld.com.